With Whitmer’s support, Nessel joins suit challenging DeVos Title IX rules

By: - June 8, 2020 7:47 am

Betsy DeVos | Gage Skidmore via Flickr CC BY-SA 2.0

Michigan Attorney General Dana Nessel, with Gov. Gretchen Whitmer’s backing, is filing a lawsuit alongside 17 other attorneys general to dispute new Title IX federal rules handed down from the U.S. Department of Education (DOE).

Nessel and states’ attorneys general say the new guidance “strips students of longstanding protections against sexual harassment” and violates Title IX mandates to stop and address sex discrimination. The new rules will openly discourage reporting of sexual harassment and sexual assault at primary, secondary and postsecondary schools, per their joint complaint.

Gov. Gretchen Whitmer and Attorney General Dana Nessel | Andrew Roth

U.S. Education Secretary Betsy DeVos released the new guidance last month, despite objections to postpone it as schools dealt with the COVID-19 pandemic. The guidance pertains to Title IX, a key interpretation of the U.S. Constitution’s 14th Amendment that prohibits federally-financed educational programs from subjecting persons to discrimination on the basis of sex.

DeVos’s long-planned-for rule changes roll back former President Obama-era guidelines and give more protections to students accused of sexual assault, according to analyses. In a press release, DeVos and the Department of Education (DOE) said the rules give due process rights back to accused individuals.

By putting the new rules in place, the DOE shows a “blatant disregard” for any pain and fear victims of sexual assault and harassment face, Nessel said.

“The fact of the matter is this: the final rule will make educational institutions less safe and diminish their ability to promptly deter, stop and prevent sexual harassment and violence,” she said. 

The rules have already been met with controversy from survivors and advocates, especially components that would mandate live hearings by arbitrators who are not with a Title IX office nor investigative staff. Under the rules, a student’s representatives can conduct cross examinations of other students. 

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Students may also appeal decisions made by their institutions and schools are also allowed to raise standards of evidence to be “clear and convincing,” which makes it more difficult for accused students to be found guilty. Before the new guidance, a “preponderance of evidence” was required.

The rules also narrow down the definition of sexual harassment to unwelcome conduct that is “so severe, pervasive and objectively offensive that it effectively denies a person equal access to education.”

Nessel said the rules will make students less likely to come forward and report harassment or assault, hence her and Whitmer’s decision to bring Michigan into the lawsuit. Whitmer said it pains her to see how the new rule “water down” Title IX protections for students.

“It’s important to stand up to efforts to weaken student protections against sexual harassment and violence that undermine the intent of Title IX,” Whitmer said. “These rules will do nothing to change the culture of campus sexual assault and strongly discourages victim disclosure.”

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Here is what the complaint from the state attorneys general says the new rule will do: 

  • Narrow the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct from Title IX’s reach, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct.
  • Require extensive and unnecessary new procedural requirements that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students.
  • Force schools to dismiss any reports of sexual harassment that happen outside the guidelines of the new rule, requiring schools to adopt parallel code of conduct provisions to keep their campuses safe. But critics say this will also cause confusion and chill reporting. 
  • Demand schools make significant changes by mid-August in the midst of the COVID-19 pandemic. This will require schools to bypass the mechanisms that allow students, parents, faculty, staff, and community members to help shape important school policies.  

Nessel joins the attorneys general of California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin in bringing the lawsuit against the DOE.

Schools are required to implement the DOE’s new rules by Aug. 14. Some are asking for more time because they are already burdened with a massive switch to online learning and possible gaps in funding due to the COVID-19 pandemic. 

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C.J. Moore
C.J. Moore

C.J. Moore covers the environment and the Capitol. She previously worked at NASA’s Glenn Research Center in Cleveland as a public affairs staff science writer. She also previously covered crop sustainability and coal pollution issues for Great Lakes Echo. In addition, she served as editor in chief at The State News and covered its academics and research beat. She is a journalism graduate student at Michigan State University.